ConCourt minority judgments give Zuma new hope

Buoyed by the two dissenting voices on the Constitutional Court Bench – and despite a majority of nine confirming the court will not backtrack on its decision to send Jacob Zuma to jail for his ‘egregious’ contempt – the former President’s legal team is taking his battle with the Constitutional Court over his incarceration to the African Court on Human and Peoples Rights. In a tweet on Saturday, notes News24, the Jacob Zuma Foundation said Zuma was in consultation with his legal team after the apex court dismissed his application for the rescission of his contempt of court order. ‘He has given his lawyers instructions to take the legalisation of detention without trial by Acting Chief Justice Zondo & the Constitutional Court to the African Court on Human and Peoples Rights,’ read the tweet. In Friday's dismissal of his rescission, the court described his application as ‘litigious skulduggery’. In a second News24 report, foundation spokesperson Mzwanele Manyi called the court's dismissal of Zuma's rescission application against his 15-month sentence for contempt a miscarriage of justice. Manyi said the foundation was gravely disappointed by the judgment and did not accept it as it amounted to a form of ‘bullying against the former President’. ‘Firstly, the fact that it has taken about three months for the court to give a verdict on a matter brought on an urgent basis is on its own a great travesty of justice,’ he said. He added the Constitutional Court had demonstrated that ‘the rights of the human being, in this case President Zuma, were less important than the court protecting its own dignity through upholding a wrong judgment of imprisoning the former President without a trial being afforded to him.’

Manyi also bemoaned the strong language used by the court in its judgment, saying it showed ‘clear signs of emotions and anger from the court’. While the foundation did not accept the judgment, it was prepared ‘to abide and pay the cost order imposed’ on Zuma, he said, according to News24. ‘We have no obligation to accept the judgment, but what we will do is we will comply and pay the cost order.’ Manyi was quick to add that this would greatly increase the financial strain that Zuma was under, and he called on his supporters to continue making donations so that the former President could pay his Zondo Commission lawyers.

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The court's minority has sought to destroy the legitimacy of the majority’s decision, suggests legal writer Karyn Maughan in another News24 report. In a strongly-worded minority ruling that she says could see Zuma's lawyers pursuing his detention claims without trial before international human rights bodies, Justices Chris Jafta and Leona Theron painted the former President as the victim of a grave and unconstitutional injustice. They both insist Zuma should have been put on trial for contempt in a criminal court. Theron reiterated her view the majority ruling that sentenced Zuma to jail time was ‘made pursuant to an unconstitutional procedure’ and ‘resulted in Mr Zuma's incarceration without affording him a right of appeal’. ‘This is an unprecedented state of affairs, and to uphold the order, which is fruit of the poisoned tree, would result in substantial hardship and injustice to Mr Zuma,’ she stated in support of Jafta's minority ruling. In that ruling, Jafta found there ‘can be no doubt that Mr Zuma's disobedience of this court's order deserves to be dealt with firmly and that it calls for an appropriate punishment that may include imprisonment’. But, he stressed, the egregiousness of Zuma's conduct did not justify him being sent to prison without being tried in a criminal court. Jafta insisted the purpose of the commission's contempt case against Zuma was ‘to punish him pure and simple’ and argued the former President's ‘detention without trial’ posed a grave threat to the administration of justice. Jafta contended the Constitutional Court's order that Zuma be imprisoned might violate certain sections of the UN International Covenant on Civil and Political Rights (ICCPR). As such, he argued, the order ‘would still be susceptible to rescission’ because it ‘would expose SA to a claim under international law’.

Justice Sisi Khampepe, who delivered the majority judgment, did not buy that argument, notes Maughan in her News24 article. ‘There is no jurisprudential basis for the direct application of the (ICCPR) to an application for rescission, and its provisions simply cannot form a basis to rescind or reconsider an order of this court,’ she stated. Khampepe further argued the ‘structural integrity’ of Jafta's reasoning ‘self-implodes’ when closely scrutinised. While admitting the ICCPR was not enforceable in South African courts and any claim lodged under it would need to be made to the UN's Human Rights Committee, Jafta argued the articles of the ICCPR were ‘a factor relevant to rescission’. This argument was untenable, Khampepe said. ‘I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry,’ she stated. ‘I can only conclude that my brother (Jafta) has misconstrued the case before us and is inadvertently permitting an appeal of this court's thorough and reasoned decision on the law of contempt. The question must remain whether the applicant has proven the grounds of rescission in terms of our well-established domestic law on the subject, and the answer to that question remains categorically that he has not.’

The decision arguably demonstrates how the leadership void at the country's highest court has fuelled increasingly acrimonious division on its Bench, opines Maughan on the News24 site. Justices have accused their colleagues of violating the Constitution they are mandated to protect, while simultaneously bending over backwards to enforce a perception that Zuma has been victimised and abused by SA’s most powerful judges. This ruling is not illustrative of differing but respectful judicial views. It is powerful evidence of the dysfunctionality and politicisation that exists within the apex court – and a judicial fracturing which, it seems, is growing, writes Maughan.

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